R v McNaughton [2012] NZHC 815 (16 April 2012)

Last Updated: 4 May 2012

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2009-042-004391

CRI-2010-442-000026 [2012] NZHC 815

THE QUEEN

v

BLAIR ROBERT MCNAUGHTON BLAKE PAUL CUNNARD

ISAAC CRAWFORD WARREN JARED MATTHEW PERRY SAMUEL INGRAM GILLBANKS

Hearing: 16 April 2012

Counsel: M A O'Donoghue and J Webber for Crown

R Lithgow QC and AJD Bamford for Accused McNaughton

G P Barkle for Accused Cunnard

H Riddoch for Accused Warren

JCS Sandston for Accused Gillbanks

R B Squire QC and D Russ for Accused Perry

Sentencing: 16 April 2012

_{SENTENCING NOTES OF MILLER J}

[1] Gentlemen, you may remain seated while I read my sentencing notes. I will ask you to stand as I pass sentence upon each of you separately.

[2] You appear today for sentence today for crimes that you committed as you played your respective parts in the death of Troy Minto at Branford Park, Nelson, on

_{14 November 2009.}

R V MCNAUGHTON HC NEL CRI-2009-042-004391 [16 April 2012]

[3] You were convicted after trial, the jury having found you guilty of all of the charges that you faced. Mr McNaughton and Mr Cunnard were found guilty of murder, the latter as a party. Messrs Warren, Gillbanks and Perry were found guilty of manslaughter as parties to the killing. The same three were found guilty of jointly possessing, with all the accused, the shotgun that Mr McNaughton used to kill

Mr Minto.1 Mr Cunnard had already pleaded guilty to that charge. Messrs Cunnard,

Warren and Gillbanks also pleaded guilty at an earlier stage to unlawful assembly.

The facts

[4] The facts matter a great deal. I agree with counsel that only by paying close attention to them can I settle upon a just sentence for each of you. I must consider your individual knowledge and commitment and leadership, what you did to further the group’s unlawful purpose, and how you contributed to Mr Minto being shot. I have reviewed the evidence, and what follows are my findings on the evidence admissible against each of you. I believe that they are consistent with the jury verdicts.

[5] I begin by putting your behaviour in context. What happened at Branford Park was an arranged fight between two groups of young men, aptly named the Warren group and the Proctor group. The Warren group appear before me today and the Proctor group do not. The law tends to categorise those involved in an incident such as this as criminals or victims, condemning the one and supporting the other. The real victims here are Mr Minto and his family. I will say something more about them in a few minutes time. The Proctor group have not earned the status of victims, although some of them seemed willing to claim it in evidence.

[6] It is true that the origin of the conflict lay in Mr Warren’s refusal to accept

that his girlfriend had left him for the principal protagonist on the other side, Shannon Proctor, but by the time of the killing that had ceased to matter much, for

1 Mr Cunnard pleaded guilty to this charge at an earlier stage and is for sentence today.

Mr McNaughton was found guilty at his first trial but appealed, and it is suggested that the Court of Appeal dismissed his appeal without addressing the issue. I have ignored it for purposes of this sentencing.

both sides had fuelled the conflict in a series of tit for tat incidents. In evidence Mr Proctor presented as an intemperate man, quick to anger. On the day of Mr Minto’s death, he and his friends participated fully and enthusiastically in the confrontation. He and Mr Warren were primarily responsible for setting it up. Both sides brought supporters, expecting an all-in brawl. Both groups came armed and weapons were used from the outset. In such a fracas it is always possible that someone will be badly hurt or killed. It turned out to be one of them, but it could have been one of you.

[7] So I record at the outset, unpleasant though it is, that the Proctor group share responsibility for the death of Mr Minto. Regrettably, Mr Minto himself was a full participant in this affair. One does not lightly speak ill of the dead, but it is the Court’s function to present the truth as the Court sees it, and so I must acknowledge that.

[8] Having said that, I turn to the narrative. Over a number of months there had been incidents of home invasion and damage to vehicles on both sides, for which no one involved can take any credit. Both sides thought only to sort this out by fighting one another, not by mediating or recourse to the law or any other civilised means of resolving conflict. On each occasion these incidents involved not only the two main protagonists but also some of their friends.

[9] On Saturday 14 November both groups, including all of you, attended a drag racing meeting at Motueka. Some of you drank heavily, as did some of the Proctor group. Mr Perry, the designated driver for your Warren group, was sober. The two groups encountered one another at the meet, but hostilities were avoided. I accept that not all members of your group were interested in fighting; Mr Perry appears to have counselled against it.

[10] Trouble began in earnest on the way home from the drags. A police officer pulled your car over, having seen Messrs McNaughton and Gillbanks sitting on the rear doors, upper bodies entirely out of the car, and gesticulating as the car was moving. While the officer was dealing with you adjacent to a service station, Mr Proctor drove into the service station, seemingly to enjoy the spectacle. The

tables were turned, however, when he drove into another car as he left. Words were exchanged. Seeing that Mr Proctor was extremely agitated, the police officer, who was without backup, sensibly sent him home to avert open conflict.

[11] In this spirit of hot and drunken animosity a fight was immediately arranged, by text and phone. These communications occurred between 4.50 pm and 5.23 pm. The phones used were those identified with Mr Warren and Mr Proctor, apart from the last contact, a phone call made from Mr Minto’s phone. The arrangement was that Messrs Warren and Proctor would have it out according to what both sides saw as the rules of the street; that is, one-on-one, with fists only. However, both arranged to come in numbers, and the texts sent beforehand confirm that each side knew the other would have supporters. Mr Proctor told Mr Warren that there were four of his group and Mr Warren would be well advised to bring more than that. So- called rules of the street notwithstanding, neither group trusted the other. Both sides armed themselves. The Proctor group had a set of knuckle dusters and two bats, a plastic cricket bat and a baseball bat. The Warren group took at least two sets of knuckle dusters, possibly three, and Mr Perry put a jemmy bar in his utility, by the driver’s seat.

[12] Mr Cunnard had been living in Timaru with his parents for a month. He had returned by bus earlier on 14 November, getting off at Blenheim. Mr Warren and Mr McNaughton drove over there to collect him. He had with him a golf bag, containing a shotgun and a 22 rifle. All denials to the contrary, I have no doubt that during the course of your trip back to Nelson the two of you learned that Mr Cunnard had the weapons with him, if you did not know already that he stored them in the golf bag. Indeed, Mr McNaughton admitted in interview knowing what was in the bag, although he denied it in evidence.

[13] You gathered at Mr Warren’s house at Fountain Place while the fight was arranged. Mr Perry went to a bottle store to get more alcohol, and when he returned it appears that everyone piled into the utility and you left at once for the rendezvous. One of you put the gun into the back of the utility, between two foam mattresses. It was already loaded, Mr Cunnard having attended to that in the house.

[14] The arrangement ultimately negotiated, after a false start, was that the two groups would go to Sharlands Creek, up the Maitai Valley. There you could fight without fear of interruption by the police. The Warren group left first. At Sharlands you waited for about 15 minutes, and during that period you rehearsed your strategy for the fight.

[15] That strategy involved all of you. Although Mr Warren and Mr Proctor were to have it out, the others came not as spectators but as supporters. You all knew that others, perhaps all of you, would likely get involved in the fighting. I am satisfied that your planning extended to the gun. Manifestly, it was removed from the golf bag, loaded, and put into the utility for a purpose. There is nothing in your histories that suggests you routinely carry firearms. I find it inconceivable that so lethal, so exceptional a weapon would be loaded and taken with no discussion about how it might be put to work. I accept that Mr Perry did not know of the gun before it was discussed at Sharlands, but he admitted learning of it there.

[16] Exactly what use was to be made of the gun was a matter of some controversy in evidence. Mr Perry claimed in his statement that at Sharlands Mr McNaughton said Mr Cunnard would bring it out if things got out of hand and fire a shot in the air, by way of a signal to leave. But Mr McNaughton denied any such plan in evidence, and the only other generally admissible evidence was that Mr Pene saw Mr Cunnard pointing the gun into the air, as if meaning to fire it. I observe, however, although things had gone wrong, Mr Cunnard did not fire it. For these reasons I am not prepared to draw the inference that Mr Cunnard took the gun to fire a shot as a signal to leave. I do accept, however, that the group did not intend that it be used to shoot at anyone; rather, I find that it was there to protect your group, by intimidating your opponents, if things went wrong. That is in fact what happened, as I will shortly explain.

[17] The Proctor group were delayed reaching Sharlands, having detoured to pick up one of their number, Mr Pene. Those members of the Proctor group who went in Mr Minto’s car were Mr Proctor, Mr Minto himself, Mr Clouston and Mr Pene. They were followed by two other associates who had been called in, Mr Lee and Mr Parkin. Those two were not involved in the earlier hostilities, and they were

sober. Mr Parkin was much tested in evidence, but I found him an honest and generally reliable witness, albeit a little free to offer his opinions, as an experienced boxer, about what was going on. He viewed the fighting from a more dispassionate perspective than the others and he took no actual part in it.

[18] As they passed Branford Park on their way to Sharlands, the Proctor group encountered you coming back down. They pulled over, and Mr Perry did a U-turn and joined them. The rest of you attributed that decision to him, as does the Crown, but I reject that claim. I think it much more likely that the decision was made by his front seat passenger, who may have been Mr McNaughton. Mr Perry was not one of the decisionmakers in this group. All three vehicles pulled over at the park, and the occupants got out, except Mr Perry who stayed in the utility initially. One of the Proctor group, Mr Clouston, who was very drunk and extremely aggressive, produced the two bats. I accept that Mr Minto and Mr Proctor knew that he would use them; they understood before they left Nelson how “amped up” he was, to use a term that was employed in evidence, and he got the bats out of Mr Minto’s car before the fighting began. I note in passing that Mr Minto himself had been given a set of knuckledusters by another friend, but he left them in the car.

[19] The groups lined up, and after an exchange of insults Mr Warren charged at Mr Proctor, beginning a fight which continued until Mr Minto was shot. Others joined in at once. Within seconds Mr Clouston had hit Mr Gillbanks with one of the bats. I do not accept that Mr Gillbanks was knocked out, but he did take a heavy blow to the head and there is no evidence that he played any further part in the fighting. At the same time Mr McNaughton and Mr Cunnard, who had been standing back, stepped forward and were warned back by Mr Parkin.

[20] Mr Cunnard reached into the back of the utility and got the gun out. He pointed it at the Proctor group. I accept that he meant to warn them off, believing he was under attack, but the gun had the opposite effect. Messrs Parkin and Lee did take a step back, but Mr Minto chose to call Mr Cunnard’s bluff. He moved swiftly toward Mr Cunnard, who worked the gun’s pump action, ejecting a cartridge to discourage him by showing that the weapon was loaded. Mr Minto pushed the barrel away and punched Mr Cunnard to the ground. In the struggle Mr McNaughton

picked the gun up. He claimed in evidence that he put it back in the utility, trying to take it out of play. I am not prepared to accept that, but I do accept that he almost immediately returned it to Mr Cunnard, confirming that Mr McNaughton chose not to use it himself at that time.

[21] At about the same time Mr Clouston smashed the utility’s windows with the other bat, yelling out as he did so that you guys were dead. That caused Mr Perry to get out. He appears to have taken the jemmy bar out, but if so it was only for defensive purposes. He took no part in the fighting.

[22] Mr Cunnard was soon seen standing some metres from the fighting group, pointing the gun at them. He also pointed it at Mr Clouston after the latter smashed the windows. I accept that he was concerned by Mr Clouston’s wild behaviour with the bat.

[23] Mr McNaughton then went to Mr Cunnard and took the gun from him. He pointed it briefly at those of the Proctor group who were still fighting with Mr Warren. A process of deduction suggests that Mr Warren may have been the only member of his group who was actually fighting at that point, while on the other side Messrs Pene and Minto may have been helping Mr Proctor; they were certainly in close proximity. Mr McNaughton shouted that it was meant to be “one outs”, meaning one on one. He was trying to get others to leave Mr Warren and Mr Proctor to fight on alone. He failed in that objective, but he did attract the attention of Mr Minto, who again reacted to the gun. He swore at Mr McNaughton and began to move towards him.

[24] It was suggested in evidence that Mr Minto may have had a weapon, such as a bat or a length of four by two, in his hands. I find that he was unarmed; further, Mr McNaughton knew that. Mr Minto evidently meant to repeat his earlier action by calling the gunman’s bluff and taking the gun from him. There is no evidence to suggest that Mr Minto meant to use the gun against anyone himself. Indeed, Mr McNaughton did not say in evidence that he feared he or anyone else would be shot if the gun was taken from him. He feared rather that he would be given the

bash, as Mr Lithgow put it in his closing address. In my opinion he read Mr Minto’s

intentions correctly.

[25] As he approached, Mr Minto demanded to know whether Mr McNaughton thought the gun would stop him. Mr McNaughton responded by warning him that he would be shot if he kept coming, saying “fuck off Troy or I’ll shoot”. Mr Minto did not back off. He kept coming. He may have rushed Mr McNaughton as he closed the distance between them.

[26] But this time Mr Minto had fatally misjudged his man. Mr McNaughton shot him from a range of about three metres. The gun was loaded with buckshot, a heavy charge, and the wound was almost immediately fatal.

[27] The shooting stopped the fighting abruptly, and the Warren group fled in the utility. Steps were taken to avoid detection. The utility was hidden, the shotgun and

.22 were thrown into the bush near Riwaka, and Mr McNaughton at least tried to make arrangements to flee. Better sense soon prevailed over the initial panic, however, and none of you fled the Nelson area or resisted arrest when the police came for you. All but Mr Warren made statements to the police, the theme of which was that a one on one fight had been planned but things had gone terribly wrong. Most of you denied knowledge of the gun.

[28] Mr McNaughton’s four co-accused ultimately went to the jury as parties to homicide under s 66(2) only. The Crown alleged that the common unlawful purpose was that of fighting the Proctor group up the Maitai. The circumstantial and eyewitness evidence and your statements together convincingly prove that you all shared that purpose, but it was common ground that this was a case in which the

Crown must prove the parties knew of the gun.2 The jury must have found that each

of you did know of it, and further knew it there was a real or substantial risk that the gun would be used, at least to threaten or intimidate, and in Mr Cunnard’s case to shoot at someone with murderous intent, when you joined the common purpose. The common purpose must have been settled, at the earliest, when you gathered at

_{Fountain Place, and at the latest as you stopped at Branford Park. I think that it was}

2 R v Edmonds [2011] NZSC 159, at [48]-[52].

finally settled at Sharlands, where you reviewed your strategy. Things happened very quickly after you stopped at Branford Park.

[29] It is a serious feature of this offending that you were all willing to engage in planned group violence in which weapons were available for use in need. As the Crown says, organised group violence always invites a deterrent sentence. Having said that, it is not a case of multiple attackers on a single victim. Nor is it a case of inter-gang violence, which often attracts stern sentences. It is also necessary to distinguish between the common purpose, a brawl, and the killing, which was not planned or wanted by any of you. As I said earlier, you had the gun there for essentially defensive purposes.

Victim impact statements

[30] I now want to say something about the victims.

[31] Throughout the trial Mr Minto’s family have been silenced. They have had to endure criticisms of him which they understandably find very offensive. His mother, Shirley Way, has provided a victim impact statement in which she makes that point. She speaks of her sense of loss and the strong relationship she had with her son, who was loyal and honest with her and his siblings. She still keenly feels the shock of learning of his death, and laments the immense damage that has been done to her and her family. She sometimes experiences rage at the waste of his life. She acknowledges the suffering of your own families, as I do, but she also feels that you must be held accountable.

[32] The other victim impact statement is from Mr Minto’s partner. She is also the mother of his daughter, who was just three months old at the time of his death. She laments the loss of their future together and the disadvantages that her daughter will suffer from his absence.

[33] I mention at this point that Mrs Way and Troy’s older brother participated in

a restorative justice process with Mr Cunnard, whom they identify as the only one of

you to admit his part in the crime from the beginning and to treat them respectfully from the beginning of the criminal justice process.

Sentencing principles

[34] I want to say something briefly about sentencing principles. Murder earns a sentence of life imprisonment unless the Court decides that sentence would be “manifestly unjust”.3 Both Messrs McNaughton and Cunnard have invited me to take that exceptional course. I say exceptional because sentencing law reflects a clear community expectation that murder should normally earn life imprisonment. The Court must give written reasons whenever it chooses a lesser sentence.

[35] Life imprisonment is accompanied by a minimum period of imprisonment or minimum non-parole period, being the minimum period that the Court thinks necessary to hold the offender accountable, to denounce his conduct, to deter him and others from similar offending, and to protect the community from him. The minimum period may not be less than 10 years.4 The Crown suggests 12-13 years for Mr McNaughton, 10 for Mr Cunnard.

[36] Manslaughter attracts a maximum sentence of life imprisonment, but the Court almost always imposes a lesser sentence. There is no tariff case. For a principal offender who kills someone using a weapon in a group brawl such as this, a starting point of nine to 14 years would be appropriate.5 For parties, significantly shorter starting points may be adopted, depending on their culpability. The Crown suggests sentences in the range of five to six years for Messrs Warren, Gillbanks and Perry.6

[37] When remanding you for sentence I directed that home detention reports be prepared for the three I have just named. A community-based sentence can be

_{imposed for manslaughter, and I was not prepared to rule it out summarily.}

3 _{Sentencing Act 2002, s 102.}

4 _{Sentencing Act, s 103.}

5 _{Pahau v R [2011] NZCA 147, at [97].}

6. R v Biddle CA 279/93, 25 November 1993; R v Rafiee [2010] NZCA 180 and R v Sullivan HC Gisborne, CRI-2005-016-2100, 25 August 2006.

However, I told you at the time that you should not assume you would escape imprisonment.

[38] I now want to speak to each of you separately.

Mr McNaughton

[39] Mr McNaughton, the jury were persuaded in your case that the Crown had excluded self-defence and that murderous intent was proved. (You can remain seated for the moment, thank you.) I think that conclusion was inevitable, Mr Lithgow’s staunch efforts on your behalf notwithstanding. I accept that you did not go to Mr Cunnard and take the gun from him with the intention of shooting anyone, but you did have a purpose. You took it to threaten others by pointing it at them as you tried to impose order on the fighting. I draw that inference because that is what you did. You then shot Mr Minto because he went to you with the evident intention of taking the gun then beating you up. The shooting was deliberate, intended to stop Mr Minto. It is not clear whether you intended to kill him, and I will sentence you on the basis that you were reckless about that.

[40] Although you were acting in self-defence as you saw it, you were in control of yourself. You warned him, on your own account perhaps three times, that you would shoot if he kept coming, and in your mind that justified pulling the trigger when he did not stop. I find that although you acted in self-defence, the need for self-defence arose only after you took possession of the gun and threatened others with it. You knew that it was the gun that had provoked Mr Minto to come at you, because you said as much. You did not have much time to make a decision, but you had enough to warn him to back off, perhaps more than once. You knew that you might flee. You knew that you might put the gun down and engage in a fist fight. You chose not to do these things.

Personal circumstances

[41] Turning to your personal circumstances, you are aged 27 and single. You have worked mostly in labouring jobs. You have one young child from a relationship that ended after you assaulted your partner. You suffer what seems to be severe ADHD, and you were excluded from school at age 14. Perhaps because of that condition, you seem prone to make bad decisions and you are not good at learning from them. You have a serious alcohol problem which has not responded to previous court-ordered treatment, and when drunk you become aggressive and difficult to control. You choose unsatisfactory associates.

[42] You also have a significant criminal history spanning the period 2002-2009. You offend regularly. Many of your convictions involve violence; there are no fewer than 11 convictions for assault, some on a female. The worst of them appear to arise from an incident in 2008 in which you assaulted someone with a blunt instrument and assaulted the police. That earned you what was then your second short term of imprisonment. There is one conviction for reckless discharge of an airgun, in 2002. Some convictions involve alcohol or drugs, and there are several for offences of dishonesty and a large number for disorderly behaviour. Your reoffending risk is assessed as high.

[43] In your favour, you seem to have made the best of your imprisonment. You have engaged in correspondence study and you intend to complete NZQA and employment courses. You say that you will participate in alcohol and stopping violence courses as they become available to you.

Starting point

[44] Mr Lithgow urged me, in a thoughtful and well-researched argument, to impose a sentence short of life imprisonment. I accept, as he submits, that the discretion to impose a lesser sentence is available in circumstances that might

_{formerly have made out the defence of provocation.}7 _{It is available too where the}

7 Gempton v R [2011] NZCA 349, at [17]-[18].

killer acted in self-defence but used excessive force.8 But to summarise what I have already said, you were a leader, instrumental in arranging the fight, planning your group’s strategy, and trying to manage the fight as it went on. You used the gun offensively, by threatening the Proctor group with it. And when challenged you chose to shoot Mr Minto, a deliberate and grossly excessive reaction to the threat that he posed. These findings compel the conclusion that life imprisonment is not manifestly excessive in your case.

[45] The next question is what minimum period of imprisonment is needed to serve the relevant purposes of sentencing.

[46] I observe that you received a minimum period of 12 years after your first trial. I have considered what Clifford J said then. I generally agree with him, including his view that you assumed a leadership role, but I have had the advantage of more evidence than he, including your own. Your defence at the first trial differed; you argued primarily that the gun went off accidentally. Clifford J concluded that you were not acting in self-defence. I have taken a different view.

[47] I accept, as I have said, that accountability, denunciation and deterrence are important sentencing considerations here. This was planned group violence involving weapons. But it does not follow that the minimum period must exceed 10 years. The considerations which led Mr Lithgow to urge a lesser sentence upon me must be taken into account. To recap, the gun was taken for essentially defensive purposes, and but for Mr Clouston’s rampage with the bats it might not have been produced at all. You took the gun when Mr Minto attacked Mr Cunnard, but you chose not to use it at that time although you obviously could have done so. Shortly before the shooting you were trying to get others to fight by the so-called rules. You took the gun from Mr Cunnard for that purpose. When Mr Minto responded by deciding to attack and beat you, you shot him in self-defence. Although your actions were deliberate it is true, as Mr Lithgow urged upon the jury, that you had very little time for reflection. These substantial mitigating factors offset the aggravating

_{factors upon which the Crown relies.}

8 Daken v R [2010] NZCA 212, at [68].

[48] I adopt a starting point for the minimum period of 10 years.

Aggravating and mitigating factors

[49] Your previous and recent convictions for violence are an aggravating factor although of a less serious type. I would add six months for them.

[50] Mitigating factors are few. I make an allowance for your ADHD, which contributes to your alcohol problem and your poor choice of associates. The long remand before this trial has also given you and the other prisoners the opportunity to demonstrate capacity for rehabilitation. In your case I have noted that you seem to be making the best of your time in prison by pursuing qualifications.

[51] I observe that you claimed remorse in your dealings with your probation officer, but I discount that claim. Nothing about your uncompromising defence persuades me that you accept responsibility for Mr Minto’s death. The dominant theme of your defence was that it was all his fault. The same theme underlay your plea for a sentence short of life imprisonment. It is your prerogative to hold that view. I observe, however, that denying the obvious not only deprives you of any credit for remorse but also tends to confirm the probation officer’s view that your reoffending risk is high.

[52] Having said that, I commend you for your intention to engage in drug and alcohol treatment while in prison. If you can do that successfully and complete your qualifications, there may be hope for you. That, coupled with your age, leads me to conclude that I need not lengthen the minimum period for protective reasons. But you will serve a life sentence, and a life sentence is just what it says. I warn you that if you do not take steps to acknowledge your propensity for violence and address your problems, you may well find in due course that the Parole Board considers that you remain a risk to the community.

Sentence

[53] Mr McNaughton, please stand. Your sentence is life imprisonment with a minimum period of imprisonment of 10 years. You may be seated.

Mr Cunnard

[54] Mr Cunnard, sentencing in your case is exceedingly difficult. As with all of the parties, I must focus on the common purpose, and what you intended to do to further it, and with what knowledge you joined it. The jury have found that you joined the common purpose knowing that the gun might well be used to kill with murderous intent and otherwise than in defence of the shooter or someone else. In your police statement you explained that there was to be a fight between the two

groups, and that Mr McNaughton had said Troy Minto was his.9 You and Mr Perry

would not fight, but Mr McNaughton told you to get the gun out and use it to intimidate the other side while the rest of your group smashed them. In these circumstances it was predictable that the gun might be produced and fired at someone, should the fight not go your way. The jury must have drawn the inference that you knew that to be likely.

[55] However, I also find that you had no intention of participating in the fighting yourself, beyond using the gun in the manner that you explained in your police interview. I think it important that you did not produce the gun initially, and when you did turn to it you were acting in self-defence. You were afraid, as Mr Parkin’s evidence confirms. I also accept that you did not mean to shoot anyone yourself, even in self-defence. There is compelling evidence of that. You had the opportunity to shoot Mr Minto, but although you knew you would be assaulted you were prepared to give up the gun rather than do that. Nor was it your wish that anyone else would use it. You did nothing to encourage Mr McNaughton in the shooting

_{when he took the gun from you on the second occasion.}

9 This statement is of course inadmissible against Mr McNaughton.

Personal circumstances

[56] Looking at your personal circumstances, you are aged 23 and single. You report a good upbringing and enjoy family support. I have considered a moving letter from your mother. She explains that you found it very difficult to cope with the aftermath of a traumatic brain injury that your father suffered when you were very young. It resulted in behavioural changes in him that afflicted your childhood and eventually led your parents to separate in 1999. That in turn led you to abuse alcohol and drugs. You were not much interested in school, although you seem academically capable, and you left early. However, you excelled at sports and you have a good employment record. I have read a number of very positive references. You are described as a quiet but open and honest person. Your only previous conviction is for careless use of a vehicle, in 2006, and you are assessed as a low reoffending risk. I will treat you as a first offender.

[57] You express genuine remorse for your role in Mr Minto’s death, and you display insight into what has led you to this position. You accept responsibility, while understandably believing that you ought to have been convicted of manslaughter. You offered to plead to that charge at an early stage. I have noted that Mr Minto’s family undertook a restorative justice process with you because they recognise that you, alone of all the prisoners, were candid with the police and took responsibility from the outset. I think that is a fair assessment of you. I have read the report of the restorative justice conference. It confirms the depth of your remorse.

Starting point

[58] I have explained that murder attracts a life sentence with a minimum period of not less than 10 years, and only in exceptional circumstances will the Court impose a lesser sentence. I must now take some time to examine this issue.

[59] Although the Act speaks only of the life sentence being manifestly unjust,10 the sentence may also acquire that quality through the minimum period of imprisonment that must accompany it. The circumstances of the offence and the offender must both justify the departure from life imprisonment, after consideration of aggravating and mitigating factors.11 The Court of Appeal has said that such

cases are likely to be exceptional, referring to the legislative history.12 Such cases

are indeed uncommon. It appears that there have been just three, and I will say something about them to acknowledge how much they differ from this case. They involved respectively an elderly man who killed his wife out of mercy when she suffered dementia;13 a severely depressed man whose undiagnosed psychosis led him to an unplanned killing which was entirely out of character and which would have gone undetected had he not confessed;14 and a mentally impaired woman who had been abused by the deceased and others.15

[60] In other cases the Court commonly decides that important mitigating factors, such as mental impairment or youth or an early guilty plea,16 are insufficient to outweigh sentencing considerations, notably accountability and denunciation, which always assume prominence in homicide cases.

[61] But in each of the three examples I have just given the killer’s sentence was in issue. A murderer’s culpability is always high. But a party’s culpability17 or degree of involvement in the offence18 may differ greatly from that of the principal. It all depends on the facts. In the infamous pizza delivery murder, a group of offenders attacked Michael Choy, one of them striking him once with a piece of

wood, and they treated him callously afterwards, making no attempt to get medical

_{help for him. The killer received life with a minimum period of 10 years. One party}

10 _{Section 102(1).}

11 _{R v Rawiri HC Auckland TO14047, 16 September 2002, at [28].}

12 _{R v Rapira [2003] 3 NZLR 794, at [121].}

13 _{R v Law (2002) 19 CRNZ 500.}

14 R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011. In R v Wihongi [2011] NZCA 592, the Court of Appeal apparently doubted whether this sentence, which the Crown did not appeal,

_{was correct.}

15 _{R v Wihongi.}

16 _{Hessel v R [2009] NZCA 450, at [63].}

17 _{Sentencing Act, s 8(a).}

18 Section 9(2)(d).

received the same sentence.19 Her culpability was scarcely less than that of the killer, for it was a calculated crime planned and committed for monetary gain, and she had played an important part in its planning and execution. The victim was chosen for his vulnerability. Her role included acting as the supposed customer who distracted Mr Choy’s attention so that the principal could hit him unobserved. She knew that the victim would be seriously hurt and might die. The grave aggravating features of her offence outweighed powerful mitigating factors in her case.20

[62] Manifest injustice is also the test for departure from the statutory minimum of

17 years which governs certain murders. In one such case the Court of Appeal concluded that it would be manifestly unjust to impose a 17-year minimum on a party to an aggravated robbery in which the victim was beaten to death.21 The principal, who inflicted all the injuries, received the 17-year minimum. The appellant and another party pinned the victim as he received the fatal kicks to the head, and the appellant received the same sentence after trial. On appeal, the Crown conceded that a “peripheral” role sufficient to make one a party, but lacking “true involvement” in the offence, might well call for a lesser sentence. The Court of

Appeal took a somewhat more liberal view. It found that the party got involved only when the principal began to lose a fight with the victim. His involvement was not minimal, but he was not the ringleader, nor the principal wrongdoer. That, coupled with his age (17) and the crushing length of the sentence, warranted reduction to life imprisonment with a minimum period of 10 years.

[63] A 17-year minimum is a substantially harsher sentence than 10, and in that case no question arose of a head sentence other than life imprisonment. The relevant provisions of the sentencing law are structured differently; the Court has no power to impose a life sentence with a minimum period of less than 10 years. The courts have decided that the legislation permits a more liberal approach to the 17-year cases, reasoning that the basic presumption of life imprisonment for murder is

_{longstanding and strong.}22

19 _{R v Rawiri, above n 11.}

20 _{R v Rapira, above n 12, at [125].}

21 R v Slade [2005] 2 NZLR 526.

22 R v Williams [2005] 2 NZLR 506, at [57].

[64] Nonetheless, Parliament changed the sentencing regime in 2002 to give this Court some flexibility in murder sentencing, and the statutory test is simply manifest injustice. A sentencing Judge must make the assessment as a matter of overall impression and by reference to the facts, after examining all aggravating and mitigating factors.23 I have mentioned a 17-year case because it shows that manifest injustice can arise from the treatment of co-offenders. Parity of treatment matters a good deal in sentencing.24 The Court strives to treat like offenders alike, and the corollary of that principle is that offenders whose culpability and circumstances differ materially should be sentenced differently.

[65] In this case, I have imposed life imprisonment with a minimum period of 10 years on Mr McNaughton. Your culpability is very much less than his. Section

66(2) casts a wide net. Your status as a party to murder rests on your foreknowledge of the likely consequences of your participation in the criminal purpose of engaging in a fight. However, you were not the leader, and it was not you who decided how the gun would be used. Messrs McNaughton and Warren were the leaders and organisers, in my opinion. Further, your case is one of those, in which it can aptly be said of a party to murder that you played a peripheral role in the actual killing. Mr McNaughton took the gun from you and shot Mr Minto in excessive self-

defence.25 As I have said, you did not encourage Mr McNaughton to do that, nor did

you want to see the gun used. You had produced the gun from the utility, but only in self-defence, and even when under attack you did not fire it yourself. Had the gun remained in your possession, I think it most unlikely that anyone would have been shot, for you had shown that you were not prepared to use it and Mr Minto had shown only that he objected to its presence.

[66] Against that, it is true that the killing would not have happened without you. You brought the gun, for which you held no licence, to Nelson. You knew about the history of bad blood, and you had been involved in one earlier confrontation. You

_{agreed to take the gun to the fight. You loaded it yourself. The jury have found that}

23 _{R v Rapira, above n 12, at [121].}

24 _{Sentencing Act, s 8(e).}

25 Daken v R, above n 8, at [68].

you knew there was a real or substantial possibility that someone in your group might use it to shoot at one of the Proctor group with murderous intent.

Aggravating and mitigating factors

[67] Turning to aggravating and mitigating factors, there are no personal aggravating factors.

[68] In mitigation, you co-operated with the police and displayed real remorse, as I have said. The cases also suggest that previous good character can be an important consideration when deciding whether life imprisonment would be manifestly unjust. The absence of any material criminal history allows you to claim good character. As with the other party accused, you have been on restrictive bail for some time, and a modest allowance may be made for that.

Sentence

[69] Looking at your case in the round, I have reached the firm view that life imprisonment would be manifestly unjust. It would be disproportionately severe having regard to several factors: your culpability, the sentence imposed on Mr McNaughton, and the mitigating factors, namely previous good character and remorse. Of these the dominant consideration is parity of treatment.

[70] That means I must fix a specific term of imprisonment. I have considered a number of cases, although there are none that are directly comparable. For cases in which the prisoner was convicted of manslaughter as a party, a starting point may fall within the range of seven to 12 years, depending on the prisoner’s culpability.26

Your culpability is in some respects less than in those cases, in the worst of which

the prisoner took a lead role with the intention of inflicting serious violence on the victims himself. But you have been convicted of murder, and the sentencing

26 Clegg v R [2011] NZCA 473; R v Selby and Fraser HC Auckland CRI-2007-092-20293, 4

February 2010; R v Jamieson [2009] NZCA 555; R v Sullivan and Ors, R v Biddle and R v

Rafiee, above n 6.

purposes of accountability, denunciation and general deterrence mean that a stern sentence must be imposed, even after making an allowance for the mitigating factors.

[71] Mr Cunnard please stand. Your sentence on the murder charge is 10 years imprisonment. On the firearms charge your sentence is one year’s imprisonment, and on the unlawful assembly charge you are convicted and discharged. The sentences have already been factored into the murder sentence, and the firearms sentence will be served concurrently. I am not going to impose a minimum period of imprisonment. You may be seated.

Mr Warren

[72] For the rest of you, I have already noted that the jury must have found that you knew the gun was in the utility and knew it might well be used in the fight to threaten or intimidate. Equally, you knew that it was there for essentially defensive purposes, and none of you intended that it would be used to shoot at anyone.

[73] Mr Warren, I have found that you were a leading protagonist in the unlawful purpose of conducting a fight. I have mentioned your animosity towards Mr Proctor. You were of course fully involved in the earlier hostilities. In the circumstances, I have drawn the inference from the use of your phone and tenor of the texts that you were instrumental in setting up the fight, although Mr McNaughton also took a leadership role. It was agreed that you would start the fighting. I am satisfied that your role in the planning must have extended to the gun. Your contribution to the common purpose was such that I find you third in the order of culpability, after Mr Cunnard. I do not overlook your non-involvement with the gun at Branford Park. That is an important point in your favour.

Personal circumstances

[74] Turning to your personal circumstances. You are aged 22, with a partner. The probation report notes that you come from a good family and you retain their support. You are an engineering apprentice, and you have recently become engaged.

You have sought to express your condolences to Mr Minto’s mother, and you have offered emotional harm reparation. The probation officer nonetheless discounts your remorse and assesses your reoffending risk as high. The probation officer identifies causal factors as a poor choice of associates, a propensity for violence and a sense of entitlement.

[75] It is in some respects a very negative report, the probation officer discounting your professed willingness to change. There is some history to support that view. You have 12 convictions since 2007. Most involve driving, but there are several for driving while disqualified and there is one for escaping custody, one for disorderly behaviour and another for wilful damage. Underlying some of this offending was a poor choice of associates, which you had done nothing to remedy before the present offending. There is one conviction for burglary as recently as 2011, relating to an incident in which you went to someone’s house to support your younger sibling in a misconceived and foolish attempt to remedy some perceived wrong. It earned you community detention. Obviously you were on remand at that time.

[76] Mr Riddoch criticised the probation report as judgmental without adequate cause. It does convey the sense that the probation officer has washed his or her hands of you. I accept that your behaviour towards Mr Proctor displayed immaturity and a propensity for violence. The recent conviction for burglary has also exercised me a good deal, because it raises doubts about your maturity and commitment to change. However, you were 20 at the time of Mr Minto’s death, an age at which youth is still a significant factor, and you have achieved a great deal since 2009. You took up an engineering apprenticeship early in 2010 and you are now a leading apprentice who is well respected by your employer and its clients for your skills and dedication. You have strong support from your family and others in the Buller community. You do not abuse alcohol and drugs. I have considered a number of very positive references. Together these considerations lead me to depart from the view that the probation officer has formed of you. I think you have a real future. I think you are well on the way to rehabilitation. I think it unlikely that you will reoffend if you can gain employment in your community of origin and chosen career on your release.

Starting point

[77] Turning to the starting point, I have already made it clear that your culpability is high; you were a principal cause of the animosity between the two groups, you set up the fight, you intended to and did fight yourself, and you knew the gun was there and might be used to threaten or intimidate. However, the plan did not extend to shooting anyone and you had nothing to do with the actual use of the gun.

[78] I agree with counsel that there are few comparable cases. I have considered some in which the prisoner was a party to planned group violence, sometimes of a more serious kind than this or having a gang context or involving a single victim.27 (I should say I will footnote the references to these cases.) Even in such cases a secondary party might receive a starting point of six to eight years for a deterrent sentence. In this case you knew of the weapon and played a central role in setting up the fight as I have said, but I repeat that the gun was brought for defensive purposes while you were there to fight Mr Proctor. You single-mindedly applied yourself to

that purpose, and you had nothing to do with the gun at the scene. So your involvement in the killing was limited.28 Having regard to the need for accountability and deterrence I adopt a starting point of six years imprisonment.

Aggravating and mitigating factors

[79] Your past convictions preclude a claim to previous good character, but I will not treat them as an aggravating factor.

[80] In mitigation, I accept that you are remorseful, and I have referred to your substantial prospects of rehabilitation, which are the result of efforts you have made since your arrest, and I make a modest allowance for restrictive bail conditions

_{together those allowances will amount to 18 months.}

27 R v Kopelani HC Auckland CRI-2003-092-35815, 11 April 2006; R v Clarke HC Rotorua CRI-

_{2009-270-73, 29 May 2009; R v Sullivan & Ors and R v Biddle, above n 6.}

28 R v Maxwell CA359/02, 31 March 2003, at [17].

Sentence

[81] Mr Warren, please stand. Your sentence on the manslaughter charge is four and a half years imprisonment. On the firearms charge, your sentence is one month’s imprisonment, to be served concurrently, and on the unlawful assembly charge you are convicted and discharged. You may be seated.

Mr Gillbanks

[82] Mr Gillbanks, I have accepted that you were not an organiser. I regard you as a follower. And once the fight began you were quickly taken out of play by Mr Clouston. You had nothing to do with use of the gun. However, you were a full participant in the common purpose formed by the Warren group. Unlike Mr Perry or indeed Mr Cunnard, you were there to fight. Mr Parkin’s evidence was that you were wearing knuckledusters. You were also involved in the earlier home invasion at Mr Proctor’s home.

Personal circumstances

[83] Turning to personal circumstances, you are 24 and single, although you have a six-year old son to whom you claim to be close. It is your misfortunate to come from a family characterised by drug and alcohol abuse and violence within the home. That has given you a poor start in life. Nonetheless you have had regular employment.

[84] You display limited insight into your offending, denying that alcohol impaired your judgment and displaying approval of violence where you felt it necessary to help a mate. These attitudes lead the probation officer to assess your reoffending risk as high. I am inclined to agree. However, the probation officer evidently feels that you may reduce that risk with appropriate counselling, and suggests that a sentence of imprisonment may even increase your risk in the long term. I can understand that concern; as I have said, I see you as a follower, and your

prospects of rehabilitation would be much improved by positive role models. Unfortunately you have had little access to those in your life thus far.

[85] Your criminal history is not extensive. You have one conviction for assault, one for offensive behaviour, and two for offences of dishonesty. The rest of your convictions involve breaches of a local liquor ban.

Starting point

[86] Having regard to your role, which is materially less culpable than that of

Mr Warren, I adopt a starting point of four years imprisonment.

Aggravating and mitigating factors

[87] There are no personal aggravating factors. In mitigation, I make a modest allowance for prospects of rehabilitation, recognising that you have complied with restrictive bail conditions and have not offended since your arrest. You did not present as remorseful to the probation officer. But there may be something in Mr Sandston’s point that you find it difficult to articulate remorse which you in fact feel. You have apologised to Mrs Way.

Sentence

[88] Mr Gillbanks, please stand. On the manslaughter charge your sentence is three years and three months imprisonment. On the firearms charge, your sentence is one month’s imprisonment, to be served concurrently, and on the unlawful assembly charge you are convicted and discharged. You may be seated.

Mr Perry

[89] Mr Perry, I have come to you last because I regard you as the least culpable of the five prisoners, by a clear margin. There is a sense in which your role is easiest to isolate. The group needed a driver, and you served that purpose. The Crown has

focused on that in its submissions. But I repeat that because this is a 66(2) case I must focus on your intended contribution to the common purpose. You were least committed to it. You were not involved in the earlier incidents between the two groups, and it appears you did not even know everyone involved. You may have returned to Nelson only a couple of months earlier, having spent some time away. You counselled against violence at the drags, and you acted as fetcher and carrier of drink while the others were setting up the fight. I accept that you did not go up the Maitai to fight, nor did you fight. The only assistance you intended to provide, and did provide, was that of chauffeur. You took your own weapon, the jemmy bar, but strictly for self-defence. You did not know of the gun until you reached Sharlands, and you had nothing to do with its use.

Personal circumstances

[90] Turning to personal circumstances, you are aged 25, and single. You report a good upbringing, and you continue to enjoy family support. You have employment in the wine industry and you are highly regarded by your employer, who characterises you as reliable and conscientious and a quick learner. Indeed, your employer offered an address for home detention purposes. You admit your role in the offending, and you are genuinely remorseful, having done what you can to try to convey that remorse to the victims. I discount the Crown’s attempts to prove otherwise by producing your Facebook page; the views expressed there are not incompatible with remorse. The probation officer finds you empathetic for the victims, does not consider that you have violent tendencies, and assesses your reoffending risk as low. There are indications that the crime and the trial have taken a psychological toll on you. You do not present as having an alcohol problem, but it is suggested that alcohol and drug counselling would be a valuable adjunct to a community-based sentence. Your reoffending risk is considered low.

[91] You have a short criminal history. There are no convictions for violence, but several for driving offences including excess alcohol. You have one conviction for driving while disqualified and another for breach of community work.

Starting point

[92] Having regard to your culpability relative to that of Messrs Warren and

Gillbanks, I adopt a starting point of three years imprisonment.

Aggravating and mitigating factors

[93] I accept that your previous convictions are not an aggravating factor, but you cannot claim previous good character. In mitigation, I make an allowance of 12 months for remorse, prospects of rehabilitation, and restrictive bail conditions.

Home detention and sentence

[94] The sentence I have just calculated allows me to impose the longest available term of home detention. I consider that yours is an appropriate case for that sentence, which provides adequate denunciation and deterrence having regard to your role in the crime. There is a suitable address.

[95] Mr Perry, please stand. Your sentence on the manslaughter charge is 12 months home detention. On the firearms charge, which in your case focused on shared possession after the killing, you are convicted and discharged. The sentence of home detention is subject to the conditions recommended by the probation officer. You are to go direct to the address, 20B Herbert Street, Richmond, and there await the arrival of the probation officer.

[96] Gentlemen, you may all stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Crown Bamford Law, Nelson for Accused McNaughton Fletcher Vautier Moore, Nelson for Accused Perry